如何與中國供應商適當地談判購買契約？ 第3部分
由史蒂文・ Chow
(6)爭執解決
a. 訴訟或仲裁
問題為爭執解決是訴訟或仲裁。 當我從法學院畢業了并且參加了一家大進口&出口公司，我由總經理請求回顧他們的銷售合約。 我在合同注意的第一件事是爭執解決條目認為兩個黨可能選擇訴訟和仲裁作為解決爭端方法。
根據文章中華人民共和國的仲裁法律5，而有關的黨達成了一項協議為仲裁，人民法院不會接受給法院被帶來的衣服由任何一個唯一黨介入，除了，萬一協議為仲裁是無效的地方。
如此，如果您選擇仲裁作為解決爭端方法，您不可能提出反之亦然一項訴訟以同一個要求和。 您選擇訴訟或者仲裁，但您不可能選擇兩個。 一家大製造公司與深刻的根這裡在中國像我的第一位雇主能犯這樣錯誤，我認為許多我們的用戶(在中國沒有連接)主要的中小型企業也是大概將做同一個差錯。
b. 為什麼仲裁？
We suggests our customers choose arbitration instead of lawsuit as dispute settlement method based on the following:
Reason No. 1 Lawsuit is lengthy and expensive
According to the Civil Procedure Law of People’s Republic of China, there are two instances(first instance and second instance) for a civil case. Normally an international purchase contract related lawsuit will last more than one year, it is money and time-consuming. While for arbitration, the arbitration award is final, it is easy and fast.
Reason No. 2 Territorial Jurisdiction
According to the Civil Procedure Law of People’s Republic of China, A civil lawsuit brought against a legal person or any other organization shall be under the jurisdiction of the people’s court of the place where the defendant has his domicile. So the independence of the court of jurisdiction, the logistically inconvenience are the issue we should never neglected.
Steven Chow, Managing Director for the China Inspection Company Chinawhy.net
This is the third and final part of “How to negotiate a purchase contract with Chinese supplier properly?”. Here you can find part 1 and part 2.
July 24th, 2008 at 4:48 am
It is never this simple.
For example, if your biggest concern is your OEM manufacturer making and marketing your product after you move on to another manufacturer, you should consider litigation over arbitration because in litigation you have a chance of getting a court order stopping the manufacturing of your product.
I would also add that arbitration is not always fast and cheap either, especially when you throw in the actual cost of the arbitrators. On top of that, one of the scariest things is that there is virtually no way to appeal a wrong or biased decision.
Something else to consider is that if you are the party most likely to cause (rather than incur damages), you may prefer litigation to arbitration because it will be much tougher for a Chinese company to take a Chinese court judgment and enforce it in your home country than to take a Chinese arbitration award to your home country for enforcement.
I am certainly not trying to be comprehensive here, just trying to point out that there can be many situations where litigation might be better for you than arbitration.
The best advice is to determine these things on a case by case basis as there is no one size fits all answer.
August 2nd, 2008 at 3:49 am
Simplified Case Study:
I was engaged to produce packaging for major US consumer goods company. Selected China as country of choice. We produced 40 page document with detailed cad drawings and specifications. Met in Shanghai area at location of several Chinese packaging companies using the assistance of a Chinese agent that I knew. I received quotes and made selection. Samples were requested and inspected in China and stateside - samples went through seven interations to achieve proper color and functionality (We made a couple of alterations with our client on the US side)
Three factories were selected based on quotation, inspection and factory capacity. Yes, we had them sign off on our Cad document, our purchase order (with the usual terms and condition) and on the samples themselves.
I embedded inspectors (who worked for our Chinese agent) into the factory. Our inspectors documented the process and assisted the factory in achieving efficiencies. The inspectors also performed Quality Assurance at different stages of product production using a well established statistical inspection method. (They also performed a final inspection).
Our stateside logistics expert also arranged all transportation thus saving a fortune from the China exporter’s quotation.
End result: Millions of dollars of packaging shipped stateside exceeding our client’s expectation. Later we repeated the process with manufactured tools.
I took these steps because relying on a contract and lawyers alone would have similar odds to any game of chance.